The U.S. Supreme Court’s
ruling striking down a portion of California’s Determinate Sentencing Law is
not retroactive, the Court of Appeal for this district ruled yesterday.

Div. Two yesterday
denied Sotero Gomez’s petition for a writ of habeas corpus requiring the Los
Angeles Superior Court to reconsider his upper term sentence for rape.

Gomez was sentenced to
prison in July 2004, shortly after the Supreme Court ruled in Blakely v.
Washington (2004) 542 U.S 296, that a sentence may not be increased beyond
what would otherwise be the statutory maximum, except on the basis of prior convictions
or facts that have either been admitted by the defendant or found true by a
jury.

At the time of
sentencing, the judge ruled that Blakely did not apply to upper terms
imposed under the DSL. In Cunningham v. California (2007) 127 S.Ct. 856,
however, the high court ruled that, because an upper term sentence requires a
finding of aggravating circumstances, the middle term under the DSL is the
“relevant statutory maximum” for Blakely purposes.

Gomez received an
eight-year upper term sentence for committing rape by force or fear upon his
daughter. As aggravating factors, the judge found that the victim was
particularly vulnerable, the crime was vicious and callous, that witnesses were
threatened by the defendant, that Gomez abused a position of trust, and that
the victim was under the age of 18.

The Court of Appeal
affirmed in an unpublished opinion in 2005, citing People v. Black
(2005) 35 Cal.4th 1238, which held Blakely inapplicable to upper-term or
consecutive sentencing under the DSL. The U.S. Supreme Court later vacated Black
and sent the case back to the California Supreme Court for reconsideration in
light of Cunningham.

Gomez then filed a
habeas corpus petition in Los Angeles Superior Court. He argued that he was
entitled to relief under Blakely and Cunningham, but Los Angeles
Superior Court Judge Bruce Marrs denied the petition.

Presiding Justice Roger
Boren, writing for the Court of Appeal, said Marrs was correct.

Boren explained that
under U.S. Supreme Court precedent, a “new rule” of criminal procedure does not
apply to cases in which direct appeals have been exhausted unless it would be
fundamentally unfair not to apply the rule retroactively.

Both the Court of Appeal
and the Ninth U.S. Circuit Court of Appeals have ruled that Blakely creates
a procedural rule that is not a “watershed” rule implicating fundamental
fairness. “It follows that the rule in Cunningham, too, is neither
substantive nor a watershed rule,” Boren said, so that if it is a new rule, it
does not apply to previously adjudicated cases such as Gomez’s.

The rule in Cunningham,
the presiding justice went on to say, must be considered new, and not merely an
application of Blakely. Boren noted that there was considerable
disagreement among the justices of the Court of Appeal on the issue of whether Blakely
invalidated the DSL, that the Black court and many Court of Appeal
panels prior to Black held that it did not, and that three U.S. Supreme
Court justices dissented in Cunningham.

“It is readily apparent,
therefore, that Cunningham announced a new rule of law,” Boren wrote.

The attorneys on appeal
were Vincent James Oliver for the defendant and Deputy Attorneys General
Lawrence M. Daniels and Carl N. Henry for the prosecution.